“Attempted” conduct is also a breach of competition law – guidance from the Delta and BlueScope appeals

Two recent decisions of the Full Federal Court have provided further guidance on when “attempted” conduct or “attempt to induce” conduct will contravene competition law. 

In BlueScope Steel v ACCC [2025] FCAFC 118 and Delta Building Automation v ACCC [2025] FCAFC 119 – the Full Federal Court dismissed appeals, upholding attempted cartel conduct contraventions in favour of the Australian Competition & Consumer Commission (ACCC). In providing its decision, the Full Federal Court restated the principles that govern “attempt” and “attempt to induce” cartel conduct under the Competition and Consumer Act 2010 (Cth) (CCA).

The cases

Delta Building Automation Pty Limited v Australian Competition and Consumer Commission [2025] FCAFC 119

The ACCC initiated civil proceedings on 13 May 2021 against Delta Building Automation (Delta) and its managing director, Timothy Davis for attempting, and attempting to induce, a competitor to rig a $2 million tender for replacement of the National Gallery of Australia’s building management system.

The conduct involved a meeting in a café organised by Mr Davis with the principal of Logical Electrical Solutions, a competitor to Delta. Mr Davis offered a payment in exchange for the competitor not submitting a competitive bid which was rejected by the competitor. 

At first instance, the Federal Court held that Delta engaged in attempted bid rigging, and Delta and Mr Davis engaged in attempted inducement of bid rigging in breach of competition law. 

On appeal, Delta argued that the offer was not immediately connected to or proximate to the contravention, nor was it capable of assent. In upholding the trial judge’s findings, the Full Federal Court held this conduct moved beyond mere preparation, demonstrated the requisite intention and constituted an attempt to engage in, and attempt to induce, cartel conduct. In its unanimous judgment, the Court noted, “Mr Davis had unequivocally crossed the Rubicon and burnt his boats” by offering payment.^[1]

Delta and Mr Davis were ordered to pay penalties of $1.5 million and $120,000 under the old penalty regime, respectively.

BlueScope Steel Limited v Australian Competition and Consumer Commission [2025] FCAFC 118

In August 2019, the ACCC initiated civil proceedings against BlueScope Steel Limited (BlueScope) and its former General Manager of Sales and Marketing, Jason Ellis for nine attempts to induce cartel conduct between 2013 and 2014.

At first instance, the Federal Court held that BlueScope, Australia’s dominant flat steel producer, and Mr Ellis attempted to induce seven domestic steel distributors in Australia, an import trader and an international manufacturer into price fixing arrangements for flat steel products supplied in Australia. The attempts largely centred on Mr Ellis’ “benchmarking strategy” which encouraged distributors to use BlueScope’s price lists as a floor for their resale price with the intention of increasing prices for those products.

On appeal, BlueScope argued that no “commitments” had been sought or given, and therefore no understanding could exist. The Court emphasised that attempted contraventions did not require proof of success, only that the inducement was capable of assent and immediately connected to the proscribed outcome. 

The decision resulted in record penalties for a competition law breach of $57.5 million against BlueScope and $500,000 against Mr Ellis. 

When does an attempt constitute a breach of competition law?

While the CCA sets out a number of competition law prohibitions under Parts IV, IVBA, IVD and other specific sections, section 76 of the CCA provides that attempted conduct is also a contravention of competition law.

In particular, section 76 of the CCA provides:

(1) If the Court is satisfied that a person:…

(b) has attempted to contravene such a provision…

(d) has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision; or…

the Court may order the person to pay to the Commonwealth such pecuniary penalty…

The Delta and BlueScope decisions considered the meaning of “attempt” in this context. The Full Federal Court reinforced that the elements of “attempt” are twofold:

• Conduct element: The necessary conduct must be a “step towards” the contravention that is not too remote, subtle or tentative and goes beyond mere preparation of the contravention. Inducement also requires a positive act directed to the party that is the subject of the inducement. Therefore, mere persuasion without a threat or promise can be sufficient for inducement.
• Intention element: The relevant intention is to “bring about the proscribed result”.^[2] For example, inducement requires that the relevant party subjectively intended to induce another party to arrive at that agreement. Importantly, no expectation of success is required.

In considering these elements, the Full Federal Court found that:

• each attempt was “capable of assent”;
• irrevocable commitment from the counterparty is not required;
• the precise terms of the agreement being known is unnecessary; and
• the inchoate status of the proposal does not negate intent. 

Key takeaways

These cases are a strong reminder for organisations that: 

• Unsuccessful attempts are still unlawful: Liability for competition law breaches can arise even if the terms are not finalised or the other party refuses to engage.
• Liability for senior executives: The conduct of senior executives can expose the company and the individual to serious penalties and consequences.
• Discussing competitively sensitive information is at risk of breaching competition law: Even informal conversations with competitors can amount to a breach of competition law. It is best practice to avoid any discussion on prices, customers, areas for product or tenders with competitors.
• Competition law compliance training continues to be an effective and cost-efficient tool to minimise risk of contraventions of the law.
   

^{[1] Delta Building Automation Pty Limited v Australian Competition and Consumer Commission [2025] FCAFC 119 at [94] (Delta v ACCC). 
[2] Delta v ACCC at [38] citing Australian Competition and Consumer Commission v Australian Egg Corporation Ltd (2017) 254 FCR 311 at [92].}